Federal Government announces “first comprehensive review” of the family law system since the mid 1970s
The Federal Government has recently announced the first comprehensive review of the family law system since the enactment of the Family Law Act in the mid 1970s.
Of course there is a fair amount of politics in that announcement.
The reality is that the Australian Family Law System has been reviewed many times in the past four decades.
Since I have been practising there have been at least two reviews which have resulted in amendments, namely:
- In 2006 the Family Law Act was amended by the Shared Parental Responsibility amending legislation – again there was a fair amount of politics behind this when the then Howard Government answered the very loud voice from the “Men’s Rights” agencies who asserted that parenting disputes were bias towards Mothers. The legislation was amended to compel Courts to consider equal care as the starting point in most parenting matters; and
- In 2012 amendments were made to the Act with the intention being to better deal with family and domestic violence.
If you look back over the years, there has been more than a dozen amending pieces of legislation which ultimately have all followed “reviews” of the family law system. So what is the difference now? Why will this review bring about such change that will see an improvement in the system which many refer to as currently “broken”?
I suspect there will not be any difference and it is once again just politics.
Recently, former Chief Justice of the Family Court of Australia, Alastair Nicholson was recorded on ABC’s Lateline as firstly confirming that there had been a number of reviews since the mid 1970s and secondly that the difficulty in the past has been that recommendations from previous reviews have not been taken on board and given effect to. When asked what he was specifically referring to, he answered:
- The need for more Judges to be appointed; and
- The need to make the system less adversarial.
Now the appointment of more Judges is desperately needed but that is not going to happen. It will cost more money and both sides of Australian politics in the last decade have not addressed this issue when they have held government.
As to making the system less adversarial, this has already been attempted. Indeed, Nicholson said that the 2006 amending legislation allowed for the Judges to take a less adversarial course but it has not worked or has not been taken up as it was not mandatory.
From my perspective and this was echoed by Nicholson, the increased number of self-represented litigants has created a real burden on the system, and in particular caused the delays which are currently experienced. But, I view this as being similar to the chicken and the egg and which came first. Is it the increased number of self-represented litigants who have caused the delays or is it the delays which have caused more and more parties to have to self-act due to the vastly greater costs of being legally represented over proceedings lasting several years.
Overwhelmingly, the statistics show that when parties separate they work it out themselves and do not require a Court determined outcome. For those who find themselves in a situation where they are not able to reach agreement with their former spouse, it is vitally important that you consult a family lawyer who practices exclusively in the area of family law, takes a pragmatic and commercial approach to resolving the dispute and who explores all options not just litigation. As former Chief Justice Nicholson observed, whilst the minority, there are unscrupulous lawyers who practice in the field of family law that do not have their clients’ interests at heart.
If you have a lawyer assisting you in a family law dispute and you are concerned about the advice and recommendations you are being provided, you should take a second opinion.